North Carolina Divorce Laws Regarding Adultery

Here's the role adultery play in a North Carolina divorce.

Adultery can be used as a basis for divorce in North
Carolina. In addition, North Carolina is one of the few states where an innocent
spouse can sue a third-party that broke up the marriage. This article provides a basic
overview of adultery laws in North Carolina and how they can impact a divorce.

Criminal Conversation and Alienation of Affection

In North Carolina, innocent spouses have the option of pursuing
a civil lawsuit against their spouse’s lover and alleging “criminal conversation”
or “alienation of affection.” Through such lawsuits, injured spouses can ask a
judge or jury to order that the “defendant” (third-party lover) pay compensatory
damages, which are money damages based on loss of consortium (marital affection
and fellowship), mental anguish, humiliation, injury to health, and/or loss of
support. Innocent spouses may also request punitive damages (money damages to punish
defendants for their bad actions). Although criminal conversation and alienation
of affection are very similar, they are actually two separate causes of action,
which require different types of evidence.

What is Criminal Conversation?

Although the name suggests that a crime has been committed,
a “criminal conversation” action is not a criminal case. Instead, it’s actually
a civil case, brought by a plaintiff (the party that was allegedly wronged) in a civil court.
This is very different from a criminal case, which is tried in a criminal court
by the state or some other public official. Defendants that have committed
criminal conversation will not face criminal penalties or the possibility of
jail time.

Criminal conversation requires solid proof that your spouse
engaged in sexual relations with the third-party defendant. Most commonly,
evidence of adultery is obtained by hiring a private investigator to photograph
or videotape the affair. The innocent spouse seeking damages must prove the following
three elements:

the innocent
spouse is legally married to the adulterous spouse

sexual
intercourse took place between the adulterous spouse and a third-party
individual (you can’t sue a business, such as a “gentlemen’s club" for
criminal conversation)

the
sexual intercourse occurred during
the marriage, not after separation, and

the
adulterous act(s) took place within North Carolina’s three-year “statute
of limitations” (which means the lawsuit must be filed no more than three
years from the last act of adultery).

There is only one defense to criminal conversation; the
spouse who was cheated on encouraged or consented to the adulterous affair before it took
place.

What is Alienation of Affection?

To prove alienation of affection, the plaintiff must show
the following elements:

the
spouses shared a loving marriage with genuine affection and love

the
love and affection has been destroyed

the
malicious behavior of the third party was the direct cause of the alienation
leading to the end of the marriage, and

the
innocent spouse has been damaged in some way.

As with criminal conversation, you must file suit for
alienation of affection within three years from the date the last wrongful act
occurred.

Unlike criminal conversation, the innocent spouse/plaintiff
doesn’t have to prove that actual sexual intercourse took place. The plaintiff
only has to prove that the defendant’s actions caused alienation and led to the
end of the marriage. This civil action can even be brought against a mother-in-law,
for example, who advised the husband or wife to leave the marriage.

As stated above, innocent spouses can recover both
compensatory and punitive damages.

How Adultery Affects Divorce in North Carolina

Alimony and Custody

In North Carolina, courts
may consider either spouse’s marital misconduct, including adultery, when
deciding how much alimony to award. In addition, this may be a factor courts
consider when making decisions about child custody.

Division of Property

Typically, adultery won’t influence a judge’s decision about
the division of property. If an extramarital affair is unrelated to the economic
condition of the marriage, then the adultery is not a proper factor for
consideration.

However, if the adultery affected the married couple’s
finances, it may become relevant. For example, if the cheating spouse spent
thousands of dollars of marital assets to buy gifts for his or her lover, or to
pay for expensive hotel rooms during the affair, a judge may take this into
considering when dividing assets between the spouses.

Contacting a Divorce Attorney for Help

Many divorces are complex and require specialized legal
knowledge, particularly when issues of marital misconduct come up. If you need advice about how adultery might impact your own divorce, you should contact an experienced family law attorney.